Melissa Cook said she was confronted with a harrowing decision: Would she abort a fetus she was carrying for someone else?
The 47-year-old Californian had agreed to be a surrogate for a 50-year-old postal worker in Georgia, and she became pregnant last year with three boys. But then, she said later in a lawsuit, the man expressed concerns about his dwindling finances and about the health of the babies. He asked her to undergo “selective reduction” to eliminate one of the embryos.
“I am pro life and I am not having an abortion,” Cook told him, according to court documents. “They are all doing just fine.”
She said he told her he considered adoption but thought it would be cruel to separate the triplets and opted for abortion instead.
Cook said the man told her: “I made my decision which is best.”
Cook, now 23 weeks’ pregnant, filed a lawsuit Monday in Los Angeles Superior Court, claiming California’s surrogacy law violates due process and equal-protection rights guaranteed in the Constitution.
“I no longer view surrogacy arrangements in the same favorable light I once did,” Cook said in a statement to The Washington Post. “I have a deep empathy for men who want children. However, I now think that the basic concept of surrogacy arrangements must be re-examined, scrutinized and reconsidered.”
Indeed, other surrogates have faced the same dilemma: Does a woman carrying someone else’s child waive her rights to her own body?
Cook was implanted with three embryos by in vitro fertilization, using sperm from the man and eggs from a donor. The Georgia man’s attorney, Robert Walmsley, said that after all three embryos had developed, doctors told the father-to-be that there were major medical risks associated with multiple births. Doctors suggested that Cook undergo a “reduction,” a medical term used to describe the elimination of a fetus when there are risks to the mother or child.
“Believe me, it crushed him to make that call or request,” Walmsley told The Post. “It wasn’t a matter of convenience — I don’t want to have three kids.”
In one September email to his attorney, the man — who isn’t identified by name in the lawsuit — appears to discuss “aborting,” according to the court documents. Walmsley said he made the request “to best protect everyone involved.”
But Cook contends that the man’s initial concern was that he could not raise all three children.
California is among several surrogate-friendly states. The state law permits commercial surrogacy — in which a woman receives compensation in addition to reimbursement for medical costs and other related expenses. Many other states allow commercial surrogacy with various stipulations. A few states, as well as the District of Columbia, ban it, although D.C. lawmakers have considered allowing it again.
“Compared to the 50 states, District law is among the most restrictive with regard to surrogacy agreements, which is out of step with our commitment as a city to equality and family,” D.C. Council member Charles Allen (D-Ward 6) said earlier this year, when the council proposed the Collaborative Reproduction Amendment Act of 2015, according to the Washington Times. “I believe surrogacy should be an option for District residents who wish to have children.”
Judith Daar, chairman of the American Society for Reproductive Medicine Ethics Committee, said that there are thousands of surrogacies each year and that “the vast majority experience no glitches.”
“The fact that we’re seeing these cases now should not be taken as a sign that surrogacy has gone awry,” she told The Post.
Another surrogate in Southern California recently came forward with her own story after she said she read about Cook’s case before Monday’s legal filing.
Brittneyrose Torres, who is about midway through her pregnancy with triplets, told the news media that the biological parents had asked her to “reduce” to minimize medical risks. Her case caught the attention of the Center for Bioethics and Culture Network, a surrogacy watchdog, and her story made national headlines.
Torres told the New York Post that she signed a contract for up to $30,000 — $25,000 for one child and an extra $5,000 for more.
She was implanted with two embryos — one that was a female and the other that split into twin males.
She said the couple asked her to eliminate the female, citing medical concerns.
“I emailed my doctors. There were no abnormalities,” Torres told the New York Post, referring to a conversation she said she had with the triplets’ biological mother. “I told her I couldn’t abort one of the children,” she added. “I could not emotionally and physically do that at nearly 13 weeks. I believe it will be killing this baby.”
Instead, she said, she told them she would be willing to adopt the unwanted child.
Andrew Vorzimer, an attorney for the biological parents and a mediator in the case, said the situation has since been resolved. No lawsuit was ever filed in the case.
Vorzimer said that numerous physicians had recommended a reduction for the surrogate’s health and that “everyone agreed she would do it.” But when it came time, he said, “she felt uncomfortable.”
“She couldn’t do it,” he told The Post.
As for the suggestion to eliminate the female, Vorzimer said it would have been easier to do so because the males were in the same sac. The notion that the biological parents did not want a girl “could not be further from the truth,” he said.
An attorney for Torres declined to comment.
There are real health concerns with multiple births.
Daar, a professor at Whittier Law School and also a clinical professor at the University of California at Irvine School of Medicine, said that in multiple births — particularly those with three or more babies — complications can arise with the mother as well as the children.
According to a law review article Daar published in 2012:
There are well-documented increases in maternal morbidity and mortality from gestational diabetes, hypertension, cesarean delivery, pulmonary emboli, and postpartum hemorrhage in addition to fetal, neonatal, and childhood complications from neurologic insults, ocular and pulmonary damage, learning disabilities, and retardation, and congenital malformations.
Her article also stated that complications can affect a child’s sensory, mobility and cognitive development.
Still, the Center for Bioethics and Culture Network called Cook’s lawsuit a “landmark case.”
“Women across America have been bullied, intimidated, exploited, and used by the commercial surrogacy industry that preys on the poor for profit,” Jennifer Lahl, the center’s president, said in a statement. “Now that industry has gone too far by trying to force women to abort healthy babies solely for financial benefit. Through this case and others, Americans are quickly coming to understand why Canada and so many European, Asian, and African countries have banned paid surrogacy. It turns women into faceless breeders and children into made-to-order products.
“This must stop here.”
In Cook’s lawsuit, she claims she is the triplets’ legal mother and is seeking parental rights over the third child as well as a custody hearing for the two others.
She also is requesting a declaration stating that she cannot be sued for refusing to have an abortion.
Daar said that although most surrogacy agreements contain “abortion clauses,” in which a parent can request a reduction for the health and safety of the surrogate as well as the fetuses, the procedure is not really enforceable.
Daar said legal experts “can feel very comfortable in saying no — a court would not order a surrogate to have a procedure she did not consent to or that she was opposed to.” In addition, she said, it would be unlikely for a California court to grant parental rights to a surrogate.
But what’s particularly notable, she said, is Cook’s request for protection against a future lawsuit. “Would she be responsible for damages?” Daar said. “That’s less clear, and that has not really been discussed by the court. It might take the remedies question to a new level.”
Cook’s attorney, Harold Cassidy, who represented the surrogate mother in the well-known Baby M case in the 1980s, said his new client’s surrogacy contract and the law it leans on “will not withstand constitutional scrutiny.”
“The notion that a man can demand that a mother terminate the life of one of the children she carries by an abortion, and then claim that she is liable for money damages when she refuses, is cruel to the mother,” Cassidy said in a statement. “The idea that when a mother offers to raise the child that the man wanted her to kill, but the man insists that the child be raised by a stranger instead of the mother who loved him and saved his life, is cruel to the child.”
Walmsley said the biological father has accepted Cook’s decision — although he may not agree with it — and has said he will raise all three children.